Preview
Filing # 32009589 E-Filed 09/14/2015 01:36:05 PM
IN THE CIRCUIT COURT OF THE 5™
JUDICIAL CIRCUIT IN AND FOR LAKE
COUNTY, FLORIDA
CEDRIC JOHNSON, CASE NO.: 2014-CA-563
Plaintiff,
Vv.
TRADD’S LANDING HOMEOWNERS
ASSOCIATION, INC.,
Defendant.
/
PLAINTIFF’S RESPONSE AND
MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANT’S MOTION TO DISMISS, OR IN THE ALTERNATIVE,
MOTION TO STRIKE PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES AND COSTS
Plaintiff, Cedric Johnson (“Johnson”), by and through his undersigned counsel, and
pursuant to the Florida Rules of Civil Procedure, hereby submits his Response and Memorandum
of Law in Opposition to Defendant, Tradd’s Landing Homeowners Association, Inc.’s Motion to
Dismiss, or in the Alternative, Motion to Strike Plaintiff's Claim for Attorney’s Fees and Costs,
and states:
I. Background
Plaintiff, Cedric Johnson, is a member of Tradd’s Landing Homeowners Association, and
is, or was, a member of the Board of Directors for the Association. Johnson was duly elected to
his position on the Board by a vote of the membership. During that time, Johnson became
embroiled in a contentious relationship with Michael Meglino, the President of the Association.
On July 16, 2013, Mr. Meglino and Johnson became involved in a verbal altercation which resulted
in Mr. Meglino uttering several racial epithets, and resulting in a warning that Johnson would be
removed from the Board.
JANSSEN & SIRACUSA, PLLC
120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401
Telephone (561) 420-0583 * Facsimile (561) 420-0576
FILED: LAKE COUNTY, NEIL KELLY, CLERK, 09/16/2015 09:15:43 AMCASE NO.: 2014-CA-563
Plaintiff's Response and Memorandum of Law in Opposition to Defendant’s Motion
to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees and Costs
Two weeks later, the Association removed Johnson from the Board, claiming that Johnson
improperly solicited benefits from Association vendors in April, 2013. As authority for his
removal from the Board, the Association invoked Section 720.3033, Florida Statutes.
Il. | Memorandum of Law
A. The Association wrongfully and unilaterally removed Johnson from the Board.
Notwithstanding the fact that Johnson did not engage in improper solicitation, the
Association erred in removing Johnson from the Board for alleged improper solicitations in April
2013, because (even assuming the alleged acts did occur) Section 720.3033 did not become
effective until July 1, 2013. Moreover, Section 720.3033 is not retroactive. Therefore, because
the statute was not in effect at the time of the alleged improper solicitations, Johnson could not
(and did not) violate any statute which would entitle the Association to remove Johnson from his
position as a member of the Board of Directors.
B. The Dispute in this Case Does Not Concern Any Dispute regarding Meetings of
the Board of Directors for the Defendant — it is the Improper and Illegal Removal
of Johnson from the Board.
In this case, the Association seeks to dismiss Johnson’s suit on the basis that Johnson was
required to submit his dispute to mandatory presuit mediation pursuant to Section 720.311, Florida
Statutes. However, this matter does not qualify as a “dispute” which must be submitted to pre-suit
mediation. Section 720.311 provides, in pertinent part, that:
(2)(a) Disputes between an association and a parcel owner regarding use of or
changes to the parcel or the common areas and other covenant enforcement
disputes, disputes regarding amendments to the association documents, disputes
regarding meetings of the board and committees appointed by the board,
membership meetings not including election meetings, and access to the official
records of the association shall be the subject of a demand for pre-suit mediation
served by an aggrieved party before the dispute is filed in court.
2
JANSSEN & SIRACUSA, PLLC
120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401
Telephone (561) 420-0583 * Facsimile (561) 420-0576CASE NO.: 2014-CA-563
Plaintiff's Response and Memorandum of Law in Opposition to Defendant’s Motion
to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees and Costs
In its Motion to Dismiss, the Association claims that this dispute relates to a meeting of the
board”, and therefore, must be submitted to mediation. However, Johnson does not take issue
with the manner in which any meeting of the Board of Directors was conducted. Instead, he
is seeking a declaratory judgment from this Court to declare Johnson’s rights and
obligations as it relates to the authority of the Association to remove him from his position
as a member of the Board of Directors, entirely based upon a statute which had not come
into effect at the time that the actions were allegedly committed. The retroactivity of a statute
is entirely a legal issue which must be addressed by the Court, and bears absolutely no nexus or
relationship with the manner in which the Association conduced any meetings of its Board.
Notably, despite two opportunities to do so, Defendant has failed to cite a single case
which shows that an Association’s illegal act is subject to pre-suit mediation. The retroactivity
of a statute is within the sole purview of this Court, and a “‘yes or no” issue. This type of issue
(retroactivity of a statute) is one that can only be meaningfully considered in the context of this
Court, and, in fact, can be decided in the course of this Motion to Dismiss. Once the Court has
addressed that issue, only then could a meaningful mediation be held.
In the instant case, Johnson is solely seeking declaratory relief, specifically, whether he
was wrongfully removed from the Board. Mr. Johnson was not removed from the Board at the
July 31, 2013 meeting convened by Mr. Meglino (as the Defendant alleges). Instead, Mr. Johnson
was unilaterally removed from the Board by Mr. Meglino in the wake of the July 16, 2013
altercation between Mr. Meglino and Johnson.
Following that altercation, but prior to the July 31, 2013 meeting, Johnson was prohibited
from performing his usual Board member duties: Mr. Meglino had blocked Johnson’s usual access
to security cameras in the community’s pool area and community entrance. Furthermore, Blue
3
JANSSEN & SIRACUSA, PLLC
120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401
Telephone (561) 420-0583 * Facsimile (561) 420-0576CASE NO.: 2014-CA-563
Plaintiff's Response and Memorandum of Law in Opposition to Defendant’s Motion
to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees and Costs
Water Management, the Association’s management company, no longer recognized Johnson as a
Board member After July 16, 2013. As a result, Johnson was removed from the Board on July 16,
2013. The removal meeting held on July 31, 2013 was a mere ratification of the Board’s prior
action.
Til. Conclusion
As stated above, this matter does not involve a “dispute” as defined in Section 720.311,
Florida Statutes. Johnson has not alleged that the Association committed any errors involving the
conduct of Board Meetings. Rather, this dispute involves a determination regarding whether
§720.3033 is retroactive, which would then potentially apply to the alleged acts committed by Mr.
Johnson. The Court’s determination regarding whether a particular statute is retroactive is clearly
not within the pre-suit mediation requirements of Section 720.311. Accordingly, the Motion must
be denied.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 14, 2015 a true and correct copy of the
foregoing was furnished via Electronic Mail to all parties on the attached Service List.
Respectfully submitted,
JANSSEN & SIRACUSA, P.A.
Co-Counsel for Plaintiff, Cedric Johnson
120 South Olive Avenue, Suite 504
West Palm Beach, Florida 33401
Tel: (561) 420-0583
Fax: (561) 420-0576
Email: jjanssen@jasilaw.com
By: s/ Joseph W. Janssen, HI
JOSEPH W. JANSSEN, III
Florida Bar No. 160067
(Service List follows)
4
JANSSEN & SIRACUSA, PLLC
120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401
Telephone (561) 420-0583 * Facsimile (561) 420-0576CASE NO.: 2014-CA-563
Plaintiff's Response and Memorandum of Law in Opposition to Defendant’s Motion
to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees and Costs
SERVICE LIST:
Anthony W. Logan, Esq.
The Logan Law Firm, P.L.
37 North Orange Avenue, Suite 500
Orlando, Florida 32801
Tel: (407) 649-4357
Fax: (407) 649-4356
Email: aloganlaw@gmail.com
Counsel for Plaintiff; Cedric Johnson
Joseph G. Riopelle, Esq.
Boyd Richards Parker & Colonnelli, P.L.
400 N. Ashley Drive, Suite 1150
Tampa, FL 33602
Tel: (813) 223-6021
Fax: (813) 223-6024
Email: jriopelle@boydlawgroup.com
Counsel for Defendant, Tradd’s Landing Homeowners Association, Inc.
Sarah Elizabeth Webner, Esq.
KWPA Law Office and Title Co.
860 North Orange Avenue, Suite 135
Orlando, Florida 32801
Tel: (407) 770-0846
Fax: (407) 770-0843
Email: pleadings@kwpalaw.com
Co-Counsel for Defendant, Tradd’s Landing Homeowners Association, Inc.
5
JANSSEN & SIRACUSA, PLLC
120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401
Telephone (561) 420-0583 * Facsimile (561) 420-0576
Preview
Filing # 32009589 E-Filed 09/14/2015 01:36:05 PM IN THE CIRCUIT COURT OF THE 5™ JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA CEDRIC JOHNSON, CASE NO.: 2014-CA-563 Plaintiff, Vv. TRADD’S LANDING HOMEOWNERS ASSOCIATION, INC., Defendant. / PLAINTIFF’S RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION TO STRIKE PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES AND COSTS Plaintiff, Cedric Johnson (“Johnson”), by and through his undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, hereby submits his Response and Memorandum of Law in Opposition to Defendant, Tradd’s Landing Homeowners Association, Inc.’s Motion to Dismiss, or in the Alternative, Motion to Strike Plaintiff's Claim for Attorney’s Fees and Costs, and states: I. Background Plaintiff, Cedric Johnson, is a member of Tradd’s Landing Homeowners Association, and is, or was, a member of the Board of Directors for the Association. Johnson was duly elected to his position on the Board by a vote of the membership. During that time, Johnson became embroiled in a contentious relationship with Michael Meglino, the President of the Association. On July 16, 2013, Mr. Meglino and Johnson became involved in a verbal altercation which resulted in Mr. Meglino uttering several racial epithets, and resulting in a warning that Johnson would be removed from the Board. JANSSEN & SIRACUSA, PLLC 120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401 Telephone (561) 420-0583 * Facsimile (561) 420-0576 FILED: LAKE COUNTY, NEIL KELLY, CLERK, 09/16/2015 09:15:43 AMCASE NO.: 2014-CA-563 Plaintiff's Response and Memorandum of Law in Opposition to Defendant’s Motion to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees and Costs Two weeks later, the Association removed Johnson from the Board, claiming that Johnson improperly solicited benefits from Association vendors in April, 2013. As authority for his removal from the Board, the Association invoked Section 720.3033, Florida Statutes. Il. | Memorandum of Law A. The Association wrongfully and unilaterally removed Johnson from the Board. Notwithstanding the fact that Johnson did not engage in improper solicitation, the Association erred in removing Johnson from the Board for alleged improper solicitations in April 2013, because (even assuming the alleged acts did occur) Section 720.3033 did not become effective until July 1, 2013. Moreover, Section 720.3033 is not retroactive. Therefore, because the statute was not in effect at the time of the alleged improper solicitations, Johnson could not (and did not) violate any statute which would entitle the Association to remove Johnson from his position as a member of the Board of Directors. B. The Dispute in this Case Does Not Concern Any Dispute regarding Meetings of the Board of Directors for the Defendant — it is the Improper and Illegal Removal of Johnson from the Board. In this case, the Association seeks to dismiss Johnson’s suit on the basis that Johnson was required to submit his dispute to mandatory presuit mediation pursuant to Section 720.311, Florida Statutes. However, this matter does not qualify as a “dispute” which must be submitted to pre-suit mediation. Section 720.311 provides, in pertinent part, that: (2)(a) Disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association shall be the subject of a demand for pre-suit mediation served by an aggrieved party before the dispute is filed in court. 2 JANSSEN & SIRACUSA, PLLC 120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401 Telephone (561) 420-0583 * Facsimile (561) 420-0576CASE NO.: 2014-CA-563 Plaintiff's Response and Memorandum of Law in Opposition to Defendant’s Motion to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees and Costs In its Motion to Dismiss, the Association claims that this dispute relates to a meeting of the board”, and therefore, must be submitted to mediation. However, Johnson does not take issue with the manner in which any meeting of the Board of Directors was conducted. Instead, he is seeking a declaratory judgment from this Court to declare Johnson’s rights and obligations as it relates to the authority of the Association to remove him from his position as a member of the Board of Directors, entirely based upon a statute which had not come into effect at the time that the actions were allegedly committed. The retroactivity of a statute is entirely a legal issue which must be addressed by the Court, and bears absolutely no nexus or relationship with the manner in which the Association conduced any meetings of its Board. Notably, despite two opportunities to do so, Defendant has failed to cite a single case which shows that an Association’s illegal act is subject to pre-suit mediation. The retroactivity of a statute is within the sole purview of this Court, and a “‘yes or no” issue. This type of issue (retroactivity of a statute) is one that can only be meaningfully considered in the context of this Court, and, in fact, can be decided in the course of this Motion to Dismiss. Once the Court has addressed that issue, only then could a meaningful mediation be held. In the instant case, Johnson is solely seeking declaratory relief, specifically, whether he was wrongfully removed from the Board. Mr. Johnson was not removed from the Board at the July 31, 2013 meeting convened by Mr. Meglino (as the Defendant alleges). Instead, Mr. Johnson was unilaterally removed from the Board by Mr. Meglino in the wake of the July 16, 2013 altercation between Mr. Meglino and Johnson. Following that altercation, but prior to the July 31, 2013 meeting, Johnson was prohibited from performing his usual Board member duties: Mr. Meglino had blocked Johnson’s usual access to security cameras in the community’s pool area and community entrance. Furthermore, Blue 3 JANSSEN & SIRACUSA, PLLC 120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401 Telephone (561) 420-0583 * Facsimile (561) 420-0576CASE NO.: 2014-CA-563 Plaintiff's Response and Memorandum of Law in Opposition to Defendant’s Motion to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees and Costs Water Management, the Association’s management company, no longer recognized Johnson as a Board member After July 16, 2013. As a result, Johnson was removed from the Board on July 16, 2013. The removal meeting held on July 31, 2013 was a mere ratification of the Board’s prior action. Til. Conclusion As stated above, this matter does not involve a “dispute” as defined in Section 720.311, Florida Statutes. Johnson has not alleged that the Association committed any errors involving the conduct of Board Meetings. Rather, this dispute involves a determination regarding whether §720.3033 is retroactive, which would then potentially apply to the alleged acts committed by Mr. Johnson. The Court’s determination regarding whether a particular statute is retroactive is clearly not within the pre-suit mediation requirements of Section 720.311. Accordingly, the Motion must be denied. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 14, 2015 a true and correct copy of the foregoing was furnished via Electronic Mail to all parties on the attached Service List. Respectfully submitted, JANSSEN & SIRACUSA, P.A. Co-Counsel for Plaintiff, Cedric Johnson 120 South Olive Avenue, Suite 504 West Palm Beach, Florida 33401 Tel: (561) 420-0583 Fax: (561) 420-0576 Email: jjanssen@jasilaw.com By: s/ Joseph W. Janssen, HI JOSEPH W. JANSSEN, III Florida Bar No. 160067 (Service List follows) 4 JANSSEN & SIRACUSA, PLLC 120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401 Telephone (561) 420-0583 * Facsimile (561) 420-0576CASE NO.: 2014-CA-563 Plaintiff's Response and Memorandum of Law in Opposition to Defendant’s Motion to Dismiss, or in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees and Costs SERVICE LIST: Anthony W. Logan, Esq. The Logan Law Firm, P.L. 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 Tel: (407) 649-4357 Fax: (407) 649-4356 Email: aloganlaw@gmail.com Counsel for Plaintiff; Cedric Johnson Joseph G. Riopelle, Esq. Boyd Richards Parker & Colonnelli, P.L. 400 N. Ashley Drive, Suite 1150 Tampa, FL 33602 Tel: (813) 223-6021 Fax: (813) 223-6024 Email: jriopelle@boydlawgroup.com Counsel for Defendant, Tradd’s Landing Homeowners Association, Inc. Sarah Elizabeth Webner, Esq. KWPA Law Office and Title Co. 860 North Orange Avenue, Suite 135 Orlando, Florida 32801 Tel: (407) 770-0846 Fax: (407) 770-0843 Email: pleadings@kwpalaw.com Co-Counsel for Defendant, Tradd’s Landing Homeowners Association, Inc. 5 JANSSEN & SIRACUSA, PLLC 120 South Olive Avenue, Suite 504* West Palm Beach, Florida 33401 Telephone (561) 420-0583 * Facsimile (561) 420-0576